Reading 3 Hurka on the moral equality of soldiers

Source: Hurka, T. (2007) ‘Liability and just cause’, Ethics and International Affairs , vol. 21, no. 2, pp. 210–13 [Online]. DOI: 10.1111/j.1747-7093.2007.00070.x (Accessed 17 October 2013). Copyright © John Wiley & Sons, Inc.

I find [McMahan’s] critique of the standard view decisive, but McMahan ignores a more persuasive justification of the moral equality of soldiers that is most clearly available given volunteer militaries on both sides of a war. It says that by voluntarily entering military service, soldiers on both sides freely took on the status of soldiers and thereby freely accepted that they may permissibly be killed in the course of war. More specifically, they accepted that they may permissibly be killed by specific people – enemy soldiers who have made a reciprocal surrender of rights – in specific circumstances – those of formally declared hostilities between their and another state. By volunteering, in other words, they freely gave up their right not to be killed in certain circumstances and so made their killing in those circumstances not unjust. And since they both did so without regard to the justice of either’s cause, their resulting status with respect to each other is the same. Their situation is like that of boxers who, in agreeing to a bout, permit each other to do in the ring what would be forbidden as assault outside it. And just as the boxers’ interaction is governed by formalized rules, so is the soldiers’: there are uniforms to distinguish the people who have surrendered and gained rights from those who have not, and formal declarations of war and cease-fires to indicate when the permissibility of killing begins and ends. There is, to be sure, an important difference between the two cases. Whereas a boxer agrees to each of his bouts individually, a soldier makes a more global surrender of rights to all enemy soldiers in all future wars. But in both cases there is a voluntary permitting of what would otherwise be a serious violation of rights.

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Though less prominent in the literature than the material-noninnocence justification, this surrender-of-rights justification does occasionally appear. Walzer’s influential discussion mostly grounds the moral equality of soldiers in the fact that they threaten each other, but at one point he says that an enemy soldier is a legitimate target because ‘he has allowed himself to be made into a dangerous man.’ ^{Footnote 1} While ‘dangerous man’ here points to material noninnocence, ‘allowed himself’ suggests a voluntary assumption of status like that central to the surrender view. Even more suggestively, Paul Christopher says that treating others as ends means treating them ‘according to the roles that they have freely chosen for themselves,’ where that means that ‘soldiers may be killed because that is treating them appropriately as soldiers.’ ^{Footnote 2}

Though it neatly supports the moral equality of soldiers, this surrender justification is open to several objections. The first argues that the right not to be killed cannot be given away, because it is inalienable. Imagine that A offers B $100,000 per year for ten years in return for the enforceable claim-right to kill B at the end of that time, and that B accepts both the offer and the money. Many will say that despite this, A is not morally permitted to kill B at the end of the ten years. Though other less weighty rights can be surrendered in contracts, the most important ones, including the right not to be killed, cannot. But if the right not to be killed is in this way inalienable, it cannot be surrendered by volunteering for military service.

The most direct reply to this objection insists that the right not to be killed is alienable, since all rights can be given away. Robert Nozick, Joel Feinberg, and others have taken this line, ^{Footnote 3} but there are less radical replies that point to differences between the surrender involved in military service and that involved in the contract between A and B.

First, what the contract tries to give A is an enforceable claim-right to kill B, one whose exercise it would be wrong of B to try to block or prevent. But volunteering for military service gives enemy soldiers only a liberty right to kill; one’s own right to defensive force against them is absolutely retained. So the surrender of rights in the military case is considerably less far-reaching and therefore perhaps less problematic. Second, once B has accepted A’s money, the rights resulting from the contract are asymmetrical: A has the right to kill B but B has no similar right against A. But the rights in the military case are equal on both sides: soldiers on both sides are permitted to kill their enemy and liable to be killed by them. Finally, the transfer of rights in the contract case is irrevocable. Once B has accepted A’s money, he cannot say he has changed his mind and now wants not to be killed; he cannot do this even if he offers to return the money. But the assumption of military status is always revocable: a soldier always has the option of either deserting from the military or surrendering to the enemy. Of course neither of these options is cost-free: if he deserts and is caught he will be imprisoned by his own side, whereas if he surrenders he will be imprisoned by the enemy. But being imprisoned is a lesser infringement of rights than being killed, and I doubt many will say the right not to be imprisoned is inalienable.

In this connection it is vital to recognize the role of time in alienation. Those who believe the right to life is inalienable need not and often do not deny that a person can permit another to kill him – for example, in voluntary euthanasia. But that is because they distinguish between waiving and alienating a right. When one waives one’s right not to be killed, as in voluntary euthanasia, the waiver is simultaneous with the killing it allows; one now permits a doctor to give one a lethal injection at that moment. But the alienation of a right occurs across time. In the contract between A and B, B’s accepting the money now is supposed to permit A to kill B at some future time whether or not B then wants to permit that killing. So unlike a waiver, which involves just a present exercise of choice, alienating a right involves an attempt by present choice to limit one’s permissible choices in the future. That is why those who deny that a right is inalienable can find waiving it perfectly acceptable. ^{Footnote 4}

Because it is revocable by desertion or surrender, the assumption of military status is closer in this key respect to waiving than to alienating the right not to be killed. There remains an obvious difference, since a soldier does not positively want to be killed, whereas a patient who requests euthanasia does. But the possibility of revocation allows us to see the permission to kill a soldier at a time as grounded in his choice at that time to remain a soldier, which assimilates it to the less contentious case of waiving rather than the more problematic one of alienation.

These features of military surrender also assimilate it to the boxing case. There too each boxer grants his opponent only a liberty-right to assault him, retaining his own right to defend himself; the resulting distribution of rights is equal; and each boxer can always revoke his surrender of rights by conceding defeat. We can also construct a boxing analogue of the contract case, where A offers B, say, $1,000 a year for ten years in return for the claim-right to punch him into unconsciousness at the end of that time. Our verdict about this contract may not be as clear as it is about the one involving killing, but I suspect some will say the contract is not binding, so if A does punch B he is morally guilty of assault. If they do say that but continue to allow standard boxing matches, they will be granting moral significance to the very features I have highlighted in a soldier’s surrender of the right not to be killed.

I do not claim that these replies decisively answer the inalienability objection, but together they make a substantial case in defence of the surrender justification. …

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[T]here is a final objection, raised by McMahan in some as-yet unpublished lectures, that points to a serious limitation in the surrender justification of moral equality. ^{Footnote 5}

This objection concerns the harm unjust combatants cause noncombatants, who have not surrendered their right not to be killed and are also not a threat. In most contemporary wars soldiers on both sides, even if they aim only at military targets, collaterally harm and even kill some civilians. Their doing so is not forbidden by the discrimination condition, but it is restricted by the proportionality condition, which allows collateral harm to civilians only when it is not out of proportion to the relevant good an act will do. And it is hard to see how ‘relevant good’ can be understood except in terms of a war’s just causes. Surely what counts as proportionate harm depends on the seriousness of the stakes in war. A level of civilian harm that would have been acceptable in World War II, fought against a genocidal enemy, might not have been acceptable in the Falklands War. But if unjust combatants have no just causes, then no acts in which they harm civilians can be proportionate, and all such acts are wrong. This creates a fundamental moral inequality between soldiers. Soldiers on a just side can fight entirely permissibly, if they target only enemy soldiers and cause only proportionate collateral harm. But except in a war fought entirely apart from civilians, such as perhaps a purely naval war, unjust combatants cannot fight permissibly. Whenever they harm civilians, even if only collaterally, their actions are disproportionate and therefore morally wrong. It does not follow that they should be prosecuted after the war; for the pragmatic reasons McMahan cites, it may be best to excuse them. But the moral reality is that in most wars unjust combatants cannot fight justly, whereas just combatants can.

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McMahan claims that to be liable for targeting, a soldier must himself be responsible for some wrong, and since there is no wrong on the just side, just combatants are not permissible targets. In reply I have argued that if soldiers on both sides have surrendered their right not to be killed to all enemy soldiers in all future wars, then with respect to each other they are moral equals, each permitted to kill their enemy and liable to be killed by them. The two sides are not completely morally equal, since in most wars just combatants can fight proportionally while unjust ones cannot. But insofar as they target each other, both act permissibly and neither’s acts are wrong. In that important respect they are moral equals.

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